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Correction

Rare Admission of Mistake in Mumia Case

by LINN WASHINGTON, Jr.

I made a mistake.

An article I wrote recently for CounterPunch about the Pennsylvania prison system’s latest punitive assault on now ex-death row inmate Mumia Abu-Jamal (unnecessarily continuing his solitary confinement) contained a factual misstatement.

Most journalists consider any inaccuracy an error, regardless of how small.

The Code of Ethics of the Society of Professional Journalists calls for admitting “mistakes” and correcting them promptly.

This journalist’s inaccuracy-as-error standard contrasts with court systems, where appellate courts too often dismiss mistakes made during trials by prosecutors and
judges without correction by using the court-invented legalistic term: harmless error.

The Abu-Jamal case is fraught with such misconduct and mistakes that appellate courts have not only not corrected, but have allowed to fester and get worse. But you won’t see the courts or the prosecutors ever admitting those things.

In my article, I inaccurately listed Pennsylvania state prison officials as being the prime movers in keeping Abu-Jamal on death row instead of transferring him into general prison population after a federal judge had voided his death sentence in a December 2001 ruling converting that sentence to a life in prison.

In that article I stated prison authorities kept Abu-Jamal on death row in 2001 “as a courtesy to Philadelphia’s District Attorney’s Office…”

Yes, keeping Abu-Jamal on death row arose from a courtesy … a courtesy that kept him on death row ten years after that 2001 ruling.

And yes, Philly’s DA (and others) did want Abu-Jamal to rot on death row.

But, no, Pennsylvania prison authorities did not extend that “courtesy.”

That “courtesy” came from William Yohn, the federal District Court judge who voided Abu-Jamal’s death sentence after finding errors in the 1982 jury deliberations resulting in Abu-Jamal receiving the death penalty.

Yohn granted a request from Philadelphia’s then District Attorney Lynne Abraham, who wanted to keep the outspoken author/activist in solitary death row confinement during her appeal of Yohn’s ruling.

Author J. Patrick O’Connor, in his probative book “The Framing of Mumia Abu-Jamal, wrote that Abraham, “in a particularly spiteful maneuver,” requested that Yohn stay his order lifting Abu-Jamal’s death sentence and, “incredibly,” Yohn agreed.

With that “courtesy” Yohn allowed Abu-Jamal to suffer death row deprivations despite his judicial determination that Abu-Jamal had unjustly spent nearly twenty-years in solitary confinement due to that legally flawed sentence.

Abraham, in the wake of Yohn’s ruling, had blasted him.

An angry Abraham, in December 2001, said she was “completely dismayed” that Yohn had granted “any relief whatsoever.”

Abraham’s reaction ignored the fact that federal district and appellate courts in Philadelphia had cited penalty phase errors (the same failing Yohn found in Abu-Jamal’s case) in two of the four death sentences those courts voided between May and November 2001.

Maureen Faulkner, the widow of slain Officer Daniel Faulkner, had also blasted Yohn, calling him a “sick and twisted person,” despite Yohn dismissing 28 of the 29 appeal claims raised by Abu-Jamal, including all claims regarding his conviction, which if accepted could have led to a new trial for Abu-Jamal, possibly leading to his release.

While my article inaccurately assigned that “courtesy” off keeping Abu-Jamal on death row to prison authorities instead of Yohn, the article did accurately account for the wasted costs of that “courtesy.”

Keeping Abu-Jamal on death row for an additional decade cost Pennsylvania taxpayers at least $100,000 because the state’s prison system spends at last an extra ten thousand dollars per year over the cost of incarcerating ordinary prisoners to handle each death row inmate.

In early December 2011, prison authorities finally shifted Abu-Jamal from death row into more harshly restrictive Administrative Custody (a/k/a The Hole) hours after Philadelphia’s DA announced he would not seek reinstatement of a death sentence.

Yohn’s 2001 ruling required the DA to either hold a mini-trial in an effort to obtain a new death sentence from a new jury, or to accept a sentence of life imprisonment. The federal Third Circuit Appeals Court twice upheld Yohn’s ruling and the U.S. Supreme Court finally ended appeals of Yohn’s ruling last fall.

One of the many problems with the Abu-Jamal case is the refusal of police, prosecutors, prison authorities and judges to acknowledge mistakes or worse, misconduct — both things that are not harmless.

Yohn, for example, made “several” mistakes in that 2001 ruling “on questions of constitutional rights central to commonly held concepts of justice,” as my TCBH colleague Dave Lindorff put it in his seminal bookKilling Time: An Investigation Into the Death Row Case of Mumia Abu-Jamal.

Lindorff presented a disturbing, thorough analysis of Yohn’s flawed dismissal of Abu-Jamal’s jury selection discrimination appeal claims in his 2003 book.

The Third Circuit rejected Abu-Jamal’s jury discrimination appeal in 2008 despite the Third Circuit’s having granted relief to other death row inmates he had raised identical jury discrimination claims.

In another mistake by Yohn that escaped scrutiny and correction by federal appellate judges, the respected jurist brushed-off Abu-Jamal’s claims that his attorney during the 1982 trial was legally ineffective because that lawyer was inexperienced in death penalty law, undercapitalized and lacked adequate support staff during that 1982 trial.

Yohn seized upon erroneous state court findings that attorney Anthony Jackson “had tried approximately twenty” first-degree murder cases. Pennsylvania state courts had twisted the exact testimony Jackson gave during a 1995 Post-Conviction Relief Act hearing about his capital case experience.

During three days of testimony in July 1995, Jackson had repeatedly told Abu-Jamal’s appellate attorney Leonard Weinglass that he had tried “one or two” capital murder cases, serving as lead counsel only once.

According to transcripts from 1995, Jackson first told Abu-Jamal’s appeal attorney that he had tried one or two first-degree murder cases. On cross-examination by the prosecutor, Jackson did say he tried twenty murder cases but stressed that only “one or two” of those cases were death penalty cases…testimony the prosecutor did not challenge with contrary evidence. On re-direct from Abu-Jamal’s attorney, Jackson again said he had only handled one or two capital cases.

Jackson, also during that 1995 testimony, said he had received inadequate funding from the courts for his defense efforts, that he had no paralegals and investigators to assist him, that a Philadelphia judge rejected his request for another lawyer to assist him and at the time of Abu-Jamal’s trial he only had a part-time secretary because he had returned to private practice only months earlier.

Yohn and lower Pennsylvania state court judges rejected Jackson’s admission that he was “ineffective” during Abu-Jamal’s 1982 trial, arguing that Jackson’s defense effort was legally sufficient.

Yohn asserted that “even were I to assume that Jackson was inexperienced, undercapitalized and lacked adequate support, [Abu-Jamal did not] demonstrate that there is a reasonable probability that but for these [conditions] the result of the proceeding would have been different.”

While Pennsylvania prison officials kept Abu-Jamal in solitary confinement for ten unnecessary years on Judge Yohn’s orders, his current continued solitary confinement is solely the responsibility of those prison officials.

As I reported in my article, the draconian Administrative Custody confinement rammed on Abu-Jamal by prison authorities evidences violations of the prison system’s own written regulations, because that placement does not meet any of the 11 specific circumstances listed in Pennsylvania Department of Corrections regulations used to justify administrative custody placement.

The “current rationales offered by prison officials for [Abu-Jamal’s] placement in solitary confinement do not withstand scrutiny, which lends further support to the inference that he is continuing to be targeted,” said Bret Grote, spokesman for the Pennsylvania Human Rights Coalition, during a recent interview.

Typical of Abu-Jamal’s selflessness, he directs his supporters to fight not just against his unjust confinement but also to assist the scores of other people the state’s Department of Corrections unjustly holds in solitary confinement on a daily basis, according to data from HRC, a prison-monitoring organization.

Grote said prison authorities improperly use Administrative Custody to penalize inmates for their political activism, for complaining about conditions, for their roles as jailhouse lawyers and often simply for racist reasons.

Linn Washington, Jr. is a founder of This Can’t Be Happening and a contributor to Hopeless: Barack Obama and the Politics of Illusion, forthcoming from AK Press. He lives in Philadelphia.